The Twenty-First Century Delivery of Legal Services: Thoughts for Legal Education

The twenty-first century lawyer will face rapid and unsettling changes in the way legal services are delivered. Legal futurists foresee many aspects of legal services being delivered more efficiently with the use of technology. For example, future breakthroughs in artificial intelligence may expand the ability to automate many tasks that currently require the skill of a lawyer. Similarly, less complex legal services such as the drafting of wills and trusts are being commoditized and provided more quickly and cheaply by new market entrants, such as LegalZoom, which provide on-line documents to millions of satisfied consumers. Additionally, new categories of licensed legal professionals are beginning to challenge established models of delivering legal services, and will continue to do so. These changes are all, and will continue to be, disruptive. Although every business faces disruptive changes at some point, in the legal services area these changes involve unique issues, particularly when they encounter the barriers that control entry into a regulated profession that is intertwined with the judicial branch of government. For example, as new technologies and market players increase the public's access to legal services, questions arise about how to define and protect the fundamental values of the legal profession, how to maintain the independence of lawyers and the judicial branch, how to define the practice of law, and how to increase the public's access to affordable and competent legal services. For legal educators, it can be challenging-and often impossible-to imagine how these changes will affect our students during their professional careers. Furthermore, although we can envision some of the changes on the horizon, others are not yet within view. Within this framework, legal education needs to prepare students for the future. This essay examines three categories of disruptive changes that will be relevant to the future delivery of legal services-technological advancements, new regulated categories of legal professionals, and new unregulated market players. During their careers, today's law students will have to grapple with how these changes will affect the legal profession and access to legal services. This essay provides some thoughts for legal educators about preparing law students for this task. Part I of this essay will give a brief overview of the three changes and how they may impact the future delivery of legal services. Part II will discuss how these changes challenge the identity and values of the legal profession and how these challenges should impact the future of legal education

Collaborations between Lawyers and New Legal Professionals: A Path to Increase Access to Justice and Protect Clients

This article explores the ongoing challenge of access to affordable legal services for civil matters. Part I introduces the idea that there are a variety of innovations that could be made to improve the public’s access to justice, but this essay pays particular attention to the various relationships between advanced practice registered nurses and physicians as a possible template for associations between lawyers and other legal professionals. Part II examines the challenges to accessing justice in the current legal market. Part III discusses the rise of alternative legal professionals to serve the unmet legal market demands. Part IV looks at advanced practice register nurses as a model for the legal professions innovations with new categories of legal professionals. Finally, Part V explores models for the delivery of legal services in light of the rise of alternative legal professionals

Stratification of the Legal Profession: A Debate in Need of a Public Forum

The American legal profession cannot presently meet the legal needs of the population. Ordinary citizens’ demand for legal services continues to rise, but those services are increasingly unaffordable. Recent law school graduates struggle to find professional employment opportunities, particularly ones that can provide salaries to meet their rising debt obligations. At the same time legal education continues to provide a general program of education while legal practice is increasingly specialized. The legal profession has not been innovative about meeting these related challenges. This article argues that the stratification of the legal profession has not been adequately explored as a way to increase access to legal services. Specifically, stratification would involve the training, education and licensure of professionals - other than lawyers - to provide some legal services. For example, a one-year program that focused on housing law leading to a limited license as a housing advocate could be created. This might be an effective way to meet an area of high consumer demand. However, because the state judiciaries regulate the scope of the legal profession’s monopoly, there is inadequate public participation and, accordingly, insufficient external pressure on the legal profession to consider these options. These deficiencies can be illustrated by comparing the judiciaries’ regulation of legal services to the legislatures’ regulation of health care services. This article proposes reforms to allow for public participation in the debate on the scope of the legal profession’s monopoly

The Legal Profession’s Monopoly: Failing to Protect Consumers

This article explores the implication of the legal monopoly that occurs through the current attorney regulation system used in most states. Through the lens of consumer protection, the author discusses how the current regulatory regime, limiting the practice of law to only those who have law licenses and law degrees, effects a landscape where many potential legal consumers' needs are not being met. First, the author provides a general discussion of consumer protection and the public interest. Then, the author focuses specifically on the legal profession, discussing the historical justification for the legal profession's monopoly: consumer protection, advancing the integrity of the judicial system and the rule of law, and economic protectionism. Next, she turns to the impact this monopoly has on consumer protection: self-policing systems deprive the consumer of the full force of state and federal consumer protection; limiting competition drives up costs, restricts access, and stifles innovation. Finally, she looks at reassessing the legal profession's monopoly. She argues that the strength of the argument justifying limiting legal services providers to only licensed attorneys does not have the same force over the entire spectrum of legal work. Therefore, she feels there can be a strong case for some regulation of legal service, especially when addressing the issues caused by the gap in access to legal services

Post-Watergate: The Legal Profession and Respect for the Interests of Third Parties

This article acknowledges that the proper execution of a lawyer's duties will often demand the lawyer put his or her client's interests first, even when it harms the interests of others. That conclusion, however, should not preclude a lawyer, who is an agent of justice in addition to being an advocate, from routinely assessing the consequences of his or her conduct on the interests of third parties. Part I of this article gives a brief overview of Watergate and focuses on the specific conduct of some of the lawyers who were disciplined. Part II of this article gives an overview of the history the American Bar Association's efforts to codify ethical rules including the promulgation of the 1983 Model Rules of Professional Conduct. Part III will discuss post-Watergate events involving lawyers that have impaired the public's trust of the profession, which suggest there is still room for improvement. Lastly, Part IV will discuss possible reforms to the Model Rules and legal education that could help instill in lawyers a principle of evaluating the impact of their conduct on third parties as a routine part of legal practice and ethical decision-making

The Supreme Court and Recusals: A Response to Professor Lubet

This essay is a response to Professor Steven Lubet's 2012 lecture at the annual Tabor Institute on Legal Ethics lecture series at Valparaiso University Law School and his corresponding article entitled “Stonewalling, Leaks and Counter-Leaks: SCOTUS Ethics in the Wake of NFIB v. Sebelius.” In his article, Professor Lubet discusses the U.S. Supreme Court's failure to adopt a comprehensive code of conduct that would, among other areas, address recusals. Lubet’s article proposes that the full Supreme Court review recusal decisions. This essay briefly explores some of the concerns about the public's perception of the Supreme Court that Lubet’s proposal on recusal review would raise. Specifically, the essay addresses the standards for recusal, the lack of transparency related to such recusal procedures, and the potential that a full Supreme Court review of recusal decisions would create the public perception of partisanship on the part of the Justices

How Do You Rate Your Lawyer? Lawyers’ Responses to Online Reviews of Their Services

With the proliferation of opportunities for consumers to review a variety of services on the Internet, it is only a matter of time until more clients review their attorneys’ services on the Internet. This raises a variety of potential ethical and public policy issues. First, what can attorneys do to try to control their online reputations? Second, if a client posts negative comments about an attorney’s services on a public Internet forum, can the attorney respond on that forum without breaching the duty of confidentiality and, if so, how? Finally, when settling a dispute with a client, may an attorney put a provision in a settlement agreement that prohibits a client from posting any reviews of the lawyer’s services on the Internet? This Article will address each of these questions in light of normative considerations, the rules governing lawyer’s reputational interests, and public policy concerns about consumers’ access to accurate information about legal services

The Birth of the Movement to Prohibit the Unauthorized Practice of Law

Despite its omnipresence in the field, there is no comprehensive history of the legal profession's effort to prohibit the unauthorized practice of law ("UPL"), by persons or entities who do not have a license to engage in such work. Drawing on original historical research, this article provides the most comprehensive view, to date, of the birth of the modem movement to prohibit the unauthorized practice of law. While bar associations' efforts to prohibit the unauthorized practice of law exploded nationwide in the 1930s, they sowed the seeds for the movement during the several decades preceding the Great Depression. Focusing on the work of the Illinois and New York bar associations in the late 1800s and early 1900s, this article chronicles how newly formed bar associations first began to address their concerns about the unauthorized practice of law. Their efforts eventually led to a well-established separation of powers principle that state courts--not state legislatures--have the inherent power to regulate the practice of law, which came to include the power to define the practice of law